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You Can Still Bring a Coronavirus-Related Lawsuit Against Your Employer—At Least for Now

Posted December 28th, 2020 by Rebecca Ojserkis in Employment Discrimination.

In the wee hours of December 21, 2020, Congress passed a COVID-19 stimulus package following months of wrangling and stalemates. After nearly a week and much criticism, President Trump signed the bill into law. Despite its massive length—almost 5,600 pages—the bill falls far short of fully meeting the urgent needs of American workers.

Congress last provided relief in late March through the Coronavirus Aid, Relief, and Economic Security (or “CARES”) Act. That $2 trillion package included some work-related supports, like guaranteeing paid family and sick leave and expanding unemployment insurance benefits. Many of these measures are either absent or sharply curtailed in the recently passed bill.

The stimulus package came together this month, in part, after Senate Majority Leader Mitch McConnell dropped his demand to shield corporations from coronavirus‑related lawsuits. The fatal and highly contagious coronavirus SARS-CoV-2 has posed dangers to the health of patrons and workers, and by association, to the health of their families. Of course, employers face a deeply complicated balancing test between enacting safety protections against the novel virus and keeping up workflow so people can be paid. But many employers are flouting public health recommendations by refusing to provide protective equipment or masks; insisting on in-person, non-distanced work when alternative arrangements are possible; and forcing employees who have been exposed to the virus to show up, or else risk their paychecks and jobs.

Some employers’ indifference borders on cruelty. Numerous private sector and government bosses have forbidden their staff from wearing masks. Others have mocked the death toll that their profit-seeking has incurred, taking bets on the number of workers who would contract COVID-19. These behaviors are not only morally reprehensible; they are unlawful.

The absence of an immunity requirement this time around is important for workers. COVID-19-related lawsuits are a crucial tool in deterring dangerous decision-making and incentivizing employers to follow public health guidelines. The picture some lawmakers paint of workers as frivolous litigants is woefully inaccurate. Lawsuits seek corporate accountability for the callous disregard to the health and lives of essential workers.

No one knows whether the latest bill is just a “down payment,” as President-elect Joe Biden says, and whether we can expect another coronavirus relief package in the new year. However, McConnell signaled on December 21, 2020, that he will “insist” on including a corporate immunity provision in any 2021 deal.

It remains to be seen how sweeping the reach of any future legal immunity proposal may be. For instance, a waiver may be granted only to major corporations and not other employers. After all, Congress exempted the country’s largest and richest businesses from the CARES Act’s paid leave requirements, which only applied to employers with fewer than 500 employees.

Another open question is what types of legal claims a liability waiver would cover. In the debates so far, the discussion has centered on barring lawsuits for conduct short of “gross negligence.” Such a measure alone could leave millions of American workers and consumers without legal recourse for serious medical and economic harms. An immunity proviso could be even more damaging if it also shielded other legal actions, like those to enforce contractual promises.

Moreover, depending on how it is drafted, a liability waiver might provide cover for employers to surreptitiously engage in workplace discrimination. The pandemic has worsened the deep inequalities that pervade every sector of society, including employment. Black and Latinx Americans, especially women, have suffered disproportionately during this time. With employers increasingly using the pandemic as a mask to engage in biased and retaliatory conduct, Congress must not create a litigation loophole that undermines antidiscrimination protections.

Hopefully, in 2021, Congress will provide further relief for workers that prioritizes their well-being and legal rights. But at least for now, employees can still hold their employers to account in the courtroom. If you believe your employer has acted unlawfully, you should consult an employment lawyer. Sanford Heisler Sharp, LLP has experienced attorneys in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.

Rebecca Ojserkis is an Associate in the New York office of Sanford Heisler Sharp, LLP.
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